Thursday, May 10, 2012

Motion for summary judgment must state grounds – Duh!

Failure to set forth affirmative defenses can’t be cured on
appeal from improperly granted traditional summary judgment. Rather obvious point, but this
opinion, released May 10, 2012, is still useful, as it provides a nice
collection of caselaw cites that non-movants might want to invoke when faced
with a woefully deficient motion for summary judgment -- with a view of avoiding an unnecessary appeal on a purely procedural issue. Better still if would-be movants who don't know what they are doing had a look at this opinion first.

The party moving for traditional summary judgment bears the burden
of showing that no genuine issue of material fact exists and that it is
entitled to judgment as a matter of law.Tex. R. Civ. P. 166a(c); see also Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003).A plaintiff moving for summary judgment must conclusively prove all
essential elements of its claim.See
Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).A matter is conclusively established if
reasonable people could not differ as to the conclusion to be drawn from the
evidence.See City of Keller v. Wilson,
168 S.W.3d 802, 816 (Tex. 2005).If the
movant meets its burden, the burden then shifts to the nonmovant to raise a
genuine issue of material fact precluding summary judgment.See Centeq Realty, Inc. v. Siegler, 899
S.W.2d 195, 197 (Tex. 1995).The
evidence raises a genuine issue of fact if reasonable and fair-minded jurors
could differ in their conclusions in light of all of the summary-judgment
evidence.Goodyear Tire & Rubber Co.
v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

A defendant moving for summary judgment must conclusively
negate at least one essential element of each of the plaintiff’s causes of
action or conclusively establish each element of an affirmative defense.Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d
910, 911 (Tex. 1997).When reviewing a
summary judgment, a court of appeals should consider summary judgment grounds
that the trial court rules on and the movant preserves for appellate review
that are necessary to a final disposition of the appeal.Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d
623, 626 (Tex. 1996).In addition, in
the interest of judicial economy, the appellate court may consider other
grounds that the movant preserved for review and the trial court did not rule
on.Id.

When a motion does not state any grounds for summary
judgment, the non-movant should file exceptions in the trial court.McConnell, 858 S.W.2d at 342.Nevertheless, Rule of Civil Procedure 166a(c)
requires the party moving for summary judgment to show that he is “entitled to
judgment as a matter of law on the issues expressly set out in the
motion.”Tex. R. Civ. P. 166a(c).Therefore, even if the non-movant did not
except to the motion in the trial court, he may argue on appeal that the motion
did not set forth sufficient grounds for summary judgment.McConnell, 858 S.W.2d at 342; Clear Creek
Basin Authority, 589 S.W.2d at 678 (“While it would be prudent and helpful to
the trial court for the non-movant always to file an [exception,] answer or
response, the non-movant needs no [exception,] answer or response to the motion
to contend on appeal that the grounds expressly presented to the trial court by
the movant’s motion are insufficient as a matter of law to support the summary
judgment.”).When a motion states one or
more grounds for summary judgment, summary judgment cannot be upheld based on a
different ground.Sci Spectrum, 941
S.W.2d at 912.

In APPELLANT’s fourth, fifth, and sixth issues, APPELLANT
contends that the trial court erred by granting summary judgment because the
motion for summary judgment did not raise an affirmative defense or present any
claims or arguments to defeat APPELLANT’s causes of action.The MOVANTS’ motion states that it “embraces
their affirmative defenses as to all claims and issues raised by [APPELLANT].”It further states that “[t]here is no genuine
issue as to any material fact necessary to establish each and every element of
Defendants’ affirmative defenses and Defendants are entitled to judgment
against [APPELLANT], as a matter of law.”Likewise, the final summary judgment order recites that “the Court finds
that there is no genuine issue as to any material fact regarding Defendants’
affirmative defenses to the claims and allegations raised by [APPELLANT] and
that Defendants are entitled to judgment in this cause, as a matter of law.”

“An affirmative defense is a matter asserted in avoidance of
a party’s argument or position, rather than a matter asserted in denial of that
party’s position.”Compass Bank v. MFP
Fin. Servs., Inc., 152 S.W.3d 844, 851 (Tex. App.—Dallas 2005, pet. denied);
see Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991)
(“Pleading an affirmative defense permits introduction of evidence which does
not tend to rebut the factual propositions asserted in the plaintiff's case,
but which seeks to establish an independent reason why the plaintiff should not
recover. . . .In short, an affirmative
defense is one of avoidance, rather than a defense in denial.”).The MOVANTS did not plead any affirmative
defense in their answers.Although an
unpleaded affirmative defense may support a summary judgment when raised in the
motion, see McConnell, 858 S.W.2d at 339, the MOVANTS’ motion for summary
judgment did not identify any particular affirmative defense or any elements of
an affirmative defense.See Roberts, 811
S.W.2d at 146 (“Grounds may be stated concisely . . . [b]ut they must at least
be listed in the motion.”).We hold that
the motion for summary judgment did not specifically state grounds of an
affirmative defense that could support the trial court’s judgment.Tex. R. Civ. P. 166a(c); McConnell, 858
S.W.2d at 341–42.We sustain APPELLANT’s
sixth issue.

Although the trial court expressly based its ruling on
affirmative defenses, in the interest of judicial economy, we will consider all
grounds for summary judgment that the MOVANTS properly presented to the trial
court.See Cincinnati Life Ins., 927
S.W.2d at 625.Their motion for summary
judgment stated that APPELLANT was suing to set aside a “(deed of trust)
foreclosure sale,” that the MOVANTS sought entry of a take-nothing judgment
against APPELLANT, that APPELLANT’s claims “are simply without merit,” that APPELLANT’s
“claim that there is a defect in the chain of title is simply without merit, as
can be seen by the attached Exhibits,” that “Defendants are guilty of no
wrongdoing,” and that “there is no merit to any of Plaintiff’s claims and
allegations.”

Aside from stating that APPELLANT was seeking to set aside a
foreclosure sale, the motion does not identify any of APPELLANT’s alleged
causes of action.It does not refer to
any of the elements of any cause of action.See Black, 797 S.W.2d at 27.It
does not explain how the lack of merit in APPELLANT’s contention of an earlier
forgery in the chain of title relates to all of her alleged causes of action or
why the court should render a take-nothing judgment if presented with
conclusive proof that there is no defect in the chain of title.The recitation of facts and the history of
the transaction begins with Julia’s parents’ purchase of the house in question
and does not anywhere address the alleged earlier forgery.Although the MOVANTS’ appellate brief fills
many of the gaps apparent in the motion for summary judgment, “summary
judgments must stand on their own merits,” Clear Creek Basin Authority, 589
S.W.2d at 678, and we cannot uphold a summary judgment on the basis of
“unstated” grounds.See Roberts, 811 S.W.2d
at 144.Accordingly, we conclude that
the MOVANTS’ motion was insufficiently specific as to the grounds upon which
they sought summary judgment, and we hold that the trial court erred by
granting summary judgment.See
McConnell, 858 S.W.2d at 342; Siegert, 961 S.W.2d 349–50.Because this holding requires that we reverse
and remand for further proceedings in the trial court, we need not address APPELLANT’s
first three issues.

Conclusion

We reverse the trial court’s final summary judgment and
remand for further proceedings.